Joint Tenancy – What You Need to Know

A tenancy agreement

Joint tenancy is a form of property ownership where two or more individuals hold an equal and undivided interest in the same property. When one joint tenant passes away, their share automatically transfers to the surviving joint tenants, and this process continues until only one joint tenant remains, who then becomes the sole owner of the property. Understanding joint tenancy is important, especially for individuals who are considering this type of ownership arrangement. Here’s what you need to know about joint tenancy:

Equal Ownership: In joint tenancy, each joint tenant holds an equal ownership interest in the property. This means that all joint tenants have an equal right to use, possess, and enjoy the entire property. For example, if there are three joint tenants, each would typically have a one-third share in the property.

Right of Survivorship: The most significant feature of joint tenancy is the right of survivorship. This means that when one joint tenant passes away, their share immediately passes to the surviving joint tenants. This process happens outside of probate, making it a straightforward way to transfer ownership upon death. As a result, the last surviving joint tenant becomes the sole owner of the property.

No Will Required: In joint tenancy, the right of survivorship takes precedence over any provisions in the deceased joint tenant’s will. This can lead to the property passing to the surviving joint tenants even if the deceased joint tenant had specified different beneficiaries in their will.

Creation of Joint Tenancy: To establish joint tenancy, the following four essential elements must be present, known as the “four unities”:

a. Unity of Time: All joint tenants must acquire their interest in the property at the same time.
b. Unity of Title: All joint tenants must receive their interest from the same source, such as the same deed or will.
c. Unity of Interest: Each joint tenant must hold an equal and undivided interest in the property.
d. Unity of Possession: All joint tenants must have an equal right to possess and enjoy the entire property.

Joint Tenancy vs. Tenancy in Common: Joint tenancy is distinct from tenancy in common, another form of co-ownership. While both allow multiple individuals to hold an interest in the same property, tenancy in common does not include the right of survivorship. In tenancy in common, each owner can have unequal ownership interests, and when one co-owner passes away, their share passes according to their will or state inheritance laws.

Severing Joint Tenancy: Joint tenancy can be severed if one joint tenant takes specific actions to break the unity of the property. For instance, if one joint tenant sells or transfers their interest to someone else, this action converts the joint tenancy into a tenancy in common for the remaining joint tenants.

Legal and Tax Implications: Joint tenancy has legal and tax implications that should be carefully considered. While it can be an efficient way to transfer property to surviving family members or avoid probate, it also means that creditors of any joint tenant can place a lien on the property, potentially affecting the other joint tenants.

It is crucial to consult with a qualified attorney or a real estate professional to fully understand the legal implications of joint tenancy and how it aligns with your estate planning and co-ownership goals. Each individual’s circumstances are unique, and professional guidance can help ensure that joint tenancy is the appropriate choice for your specific situation.